LEGAL brickbats resumed yesterday in Lagos in the matter involving British Airways (BA), Virgin Atlantic Airways and the Nigerian Civil Aviation Authority (NCAA) over allegations that the airlines were wrongly fixing Passenger Fuel Surcharge (PSF) and were involved in unethical competition.
However, the airlines denied the allegations, adding that PFS was part of recovery cost for airlines around the world against fluctuating oil price.
BA had on Monday appeared before a five-man administrative panel headed by retired Supreme Court Justice, Justice George Oguntade.
Counsel to NCAA, Prof. Yemi Osibajo had buttressed his argument, citing the collusion case in the United States (U.S.) and United Kingdom (UK) by the airlines in 2004 where he affirmed that the companies pleaded to collusion and conspiracy of fixing price; a situation he noted necessitated the countries to penalise them for their conduct.
Appearing before the panel yesterday, Osibajo stated that Virgin Atlantic colluded with BA not to remit the PSF.
According to him, the two carriers control over 90 per cent of traffic, further narrowing competition among choices.
He stated that the evidence before the NCAA against the airlines were overwhelming, stressing that the companies had cheated the NCAA by not remitting five per cent accruals from PSF to NCAA.
Counsel to Virgin Atlantic Airways, Afolabi Caxton Martins said the NCAA had no power to impose fine on the carrier, adding that NCAA Act of 2006 cannot punish an alleged offence of 2004 that was committed in U.S. and UK.
He stated that for that reason, Virgin Atlantic could not be made to pay compensation since the airline never colluded or conspired to cheat Nigerians.
According to him, "There should be evidence to show that Virgin Atlantic colluded. Virgin Atlantic has never admitted to collusion under Nigerian law and NCAA has not established that such took place".
He added: "NCAA recognises that airlines are entitled to recover cost. NCAA by law cannot impose more than N5 million", adding that what they fined the two airlines was excessive.
He noted that the findings of the aviation regulatory authority "are unfounded and burden of proof lies with the NCAA".
NCAA, however, stated that both BA and Virgin Atlantic have denied its revenue or tax from passenger fuel charge, which formed part of the base fare.
On Monday, Osibajo reiterated that PFS were embedded in the total value of passenger ticket and such constituted a violation when accruals were remitted from fuel surcharge to the regulatory authority.
But counsel to BA, Mr. Uzoma Azikiwe countered that fuel surcharge was a cost recovery mechanism by all airlines, adding that it was transparently displayed on the face of tickets.
The Federal Government, had late last year constituted an administrative appeal panel to appraise the $235 million fine slammed on the two UK carriers, which they rejected.
The Guardian